No, the 2014 Crimean Status Referendum is not Valid
Examining the treaties and constitutions on why Crimea's secession is illegal
It has been eight years since the 2014 Crimean Status Referendum and subsequent annexation by the Russian Federation. Both Ukraine and Russia argue the legality of the status referendum and accession to Russia. The Ukrainians hold that the 2014 status referendum violates the Ukrainian Constitution, with the annexation in violation of numerous treaties agreed upon by both nations.
Treaty and Convention Violations
The collapse of the Soviet Union in 1991 left Eastern Europe in disarray and presented numerous legal issues that needed addressing. From the partition of the Soviet Black Sea Fleet to the problem of former Soviet nuclear weapons in the former republic of Belarus, Kazakhstan, and Ukraine, the post-Soviet treaties also came with security assurances by the Russian Federation. And by examining these treaties and international agreements, we see that the annexation of the Crimean Peninsula is in clear, direct violation of these agreements.
The first of these treaties were a series of treaties in 1997 that dealt with the Black Sea Fleet’s partition between Ukraine and Russia. While most of the “Partition Treaty on the Status and Conditions of the Black Sea Fleet’ is irrelevant to the issue at hand, it does provide security assurances. Under the treaty, Russia was to “respect the sovereignty of Ukraine, honor its legislation and preclude interference in the internal affairs of Ukraine.”
The second treaty violated is the ‘Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation.’ Under this treaty, the borders between Russia and Ukraine were confirmed to be inviolable at ratification regardless of any further demarcation of the borders.
Article 2 of the treaty further states: “In accord with provisions of the UN Charter and the obligations of the Final Act on Security and Cooperation in Europe, the High Contracting Parties shall respect each other’s territorial integrity and reaffirm the inviolability of the borders existing between them.”
One should note that this treaty was formally ratified by the Russian State Duma and Federation Council, and the Ukrainian Rada. In Ukraine, the treaty was approved by the Law of Ukraine No. 13/98-VR on 14 January 1998. In Russia, the State Duma first ratified the treaty with the adaption of the titled legislation ‘On Ratification of the Agreement of Friendship, Collaboration and Partnership between the Russian Federation and Ukraine,’ before moving to the Federation Council for its approval.
The final convention is the Budapest Memorandum on Security Assurances. Budapest dealt with the ascension of Belarus, Kazakhstan, and Ukraine into the Non-Proliferation Treaty in exchange for assurances from the Russian Federation. These included Russia’s treaty obligation to respect the independence and sovereignty under the current border (at the time of ratification).
Constitutional Violations
When it comes to the Status Referendum, we need to examine the Ukrainian Constitution and what it says concerning referenda and the nature of Crimea as a constitutional entity within Ukraine. First, referenda are a constitutionally valid form of democratic participation, as Article 69 states: “The expression of the will of the people is exercised through elections, referendum, and other forms of direct democracy.”
So, there is a mechanism for referendum inside the Ukrainian constitution; however, further reading details when certain types of referendums are called. One of these “types” of referendums is the “All-Ukrainian Referendum,” and said vote has specific requirements specified in Article 72 §2.
“An All-Ukrainian referendum is called on popular initiative on the request of no less than three million citizens of Ukrainian who have the right to vote, on the condition that the signatures in favor of designating the referendum have been collected in no less than two-thirds of the oblasts (16 of the 24), with no less than 100,000 signatures in each oblast.”
Now, one might ask, “well, what issues require this ‘All-Ukrainian Referendum’?” well, Article 73 details one of these issues. “Issues altering the territory of Ukraine are resolved exclusively by an All-Ukrainian referendum.” In addition, the vote on 16 March 2014 did not meet the aforementioned constitutional requirements of the signatures in two-thirds of the Ukrainian oblast, nor did a vote occur throughout Ukraine and was limited to the Republic of Crimea and the city Sevastopol.
Lastly, Article 134 denotes the relationship between the Republic of Crimea and the Ukrainian federal government in Kyiv regarding the Ukrainian Constitution. “The Autonomous Republic of Crimea is an inseparable constituent part of Ukraine….”
I also want to highlight that the annexation by the Russian Federation violated the Russian Constitution. Now, Russia under Putin has a long history of blatant constitutional violations that still does not change that Article 15 §4 establishes that ratified international treaties and agreements have full legal force within Russia. Meaning the second treaty I discussed earlier, which ensured Russia would respect Ukraine’s territorial integrity, has full legal power as early 1999 (when the Federation Council ratified it).
So, in short, the very referendum that approved joining Russia, not independence from Kyiv but a transfer of jurisdiction to Moscow, is unconstitutional on three separate articles; and the annexation of Crimea by the Russian Federation also violates at minimum three international agreements and treaties.
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